David R. Wingfield

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

The defendants in a class action sought a pause in proceedings, including the adjournment of a certification motion, pending a Supreme Court of Canada judgment in *Toshiba Corporation v Godfrey*.

The SCC decision was expected to clarify key issues relevant to class certification in price-fixing cases, specifically regarding "umbrella purchasers" and the economic methodology for proving common impact for indirect purchasers.

The court granted the motion, finding that a temporary pause would prevent the need for redoing expert reports and ensure the certification motion was based on the most current state of the law, thereby promoting the expeditious and efficient conduct of the litigation.

Two consortiums of proposed Class Counsel brought competing motions for carriage of a proposed competition law class action against several German automobile manufacturers.

The underlying actions alleged that the defendants engaged in an anti-competitive conspiracy relating to automotive design, development, manufacturing, and marketing.

The court evaluated the competing litigation plans and case theories, noting that both were viable but that the Quenneville action presented a superior, more creative, and more developable case theory that appropriately included claims for deceptive marketing under the Competition Act.

The court granted carriage to the Quenneville action and stayed the competing Stibbe action.

This case conference in a proposed class action by consumers against Uber for anti-competitive conduct established a timetable for a certification motion.

The court noted a parallel class action (Heller Action) by drivers against the same defendants, where drivers sought employee status, contrasting with the current action's pleading of drivers as self-employed.

The defendants are considering a motion to stay proceedings pending the resolution of the Heller Action regarding driver status.

Despite this, a timetable for the certification motion was set, with flexibility for future revisions.

The appellant appealed from a summary judgment decision dismissing its motion and granting the respondent's motion, which declared the respondent to be the legal and beneficial owner of CDN$100,000 and US$300,000 in stolen funds that the appellant had paid out under mistake to a third party fraudster.

The appellant had been defrauded of over US$66 million in a sophisticated fraud scheme.

The Court of Appeal upheld the lower court's decision, finding that while the appellant successfully traced the US$300,000 to the respondent, the respondent was a bona fide purchaser for value who had paid valuable consideration in Chinese currency without knowledge of the funds' illicit source and had legitimately changed his position.

Following the plaintiff’s successful opposition to a motion for particulars in complex competition litigation, the court addressed the quantum of costs payable.

The plaintiff sought partial indemnity costs of $70,000 out of approximately $106,569 incurred, while the defendants proposed $42,055.

The court accepted that the litigation and motion were complex, involved extensive documentation, cross-examinations, and several days of argument, and that the plaintiff’s counsel’s rates and time were reasonable.

However, reductions were warranted because a cross-motion to strike affidavits was unnecessary and withdrawn, and certain document review costs related to the broader action rather than the motion itself.

The court fixed reasonable partial indemnity costs at $60,000 inclusive of disbursements and HST.

The defendants brought a motion seeking an order compelling the Commissioner of Competition to provide further particulars of alleged misleading representations pleaded under paragraph 74.01(1)(a) of the Competition Act concerning premium text messaging services.

The defendants argued that the statement of claim failed to identify the specific alleged misrepresentations and related details necessary to prepare their defences.

The court held that the pleading sufficiently described the alleged deceptive marketing practices and that the requested particulars largely sought evidentiary details, which are properly obtained through discovery rather than particulars.

Given that the alleged representations could number in the hundreds or more and concerned matters within the defendants’ knowledge, the court exercised its discretion to refuse the request for further particulars.

The motion was therefore dismissed.

In an insolvency appeal, the Court addressed when environmental remediation orders issued by a provincial regulator constitute provable monetary claims under the Companies’ Creditors Arrangement Act.

The majority held that orders not framed in monetary terms may still be compromised where the statutory and factual context shows sufficient certainty that compliance will ripen into a financial liability to the regulator.

Applying that framework, the majority found the remediation orders fell within the claims process and dismissed the appeal.

The dissenting judges would have required evidence approaching certainty that the province would itself perform remediation before treating most orders as contingent monetary claims.